KRISHNA PADA CHATTERJEE Vs. SMMANADA SUNDARI GHOSE

JUDGEMENT

(1.) This case raises a difficult and controversial question which in the interest of the public should be finally decided. The facts which have given rise to the litigation are shortly these: One Jogneswar, the landlord of a certain holding, brought a suit for rent and obtained a decree against the tenants in 1922. In 1923 ho sold his interest in the ganti to Gopal Chatterjee. Subsequently Gopal obtained a decree for rent in Suit No. 1930 of 1924 against the tenants. The holding was sold in execution of Gopal's decree and after that decree was satisfied, the surplus sale proceeds to the extent of Rupees 710 odd was deposited in Court to the credit of the tenants. The holding was sold in execution of Gopal's decree on 21 April 1927, but before that date on 21 March 1927, the plaintiff purchased the right, title and interest of the tenants in the holding at a certificate sale under the Public Demands Recovery Act for recovery of settlement dues from the tenants. Subsequently the rent decree, obtained by Jogneswar against the tenants was put into execution by Jogneswar's heirs and the surplus sale proceeds in Court were attached in execution. The plaintiff thereupon brought the present suit for a declaration that the money that was in deposit in Court as sale proceeds belonged to him and that he was entitled to it and not defendants 6 and 7 the heirs of Jogneswar.

(2.) Both the Courts below have dismissed the plaintiff's suit relying upon the Pull Bench decision of this Court in the case of Khetra Pal Singh V/s. Kritarthamayi Dasi [1906] 33 Cal. 566 holding that the decree obtained by Jogneswar retained the character of a rent decree even after Jogneswar had parted with his landlord's interest in favour of Gopal; and that as such it created a charge on the surplus sale proceeds in favour of defendants 6 and 7. The plaintiff has appealed and the main point argued on his behalf is that the Full Bench decision in the case of Khetra Pal Singh V/s. Kritarthamayi Dasi [1906] 33 Cal. 566 is no longer good law as it is inconsistent with the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Arthur Henry Forbes V/s. Bahadur Singh A.I.R. 1914 P.C. 111. It is contended on his behalf that according to the decision of the Privy Council the rent decree obtained by Jogneswar ceased to be a rent decree after he had parted with his interest in the ganti, that it could only be executed as a money decree, and that, as the plaintiff had acquired the holding before it was sold, the surplus sale proceeds belong to him and defendants 6 and 7 cannot in execution of their money decree against the original tenants attach and recover the surplus sale-proceeds.

(3.) The facts of this case are on all fours with those of the Full Bench case of Khetra Pal v. Kritarthamayi Dassi [1906] 33 Cal. 566 and, if that case is taken to be good law, the plaintiff's suit must fail. Here as there the decree-holder was the landlord at the time of the suit and at the time of the decree, he parted with his interest in the tenure after the decree. In the Privy Council case the facts were slightly different. There the landlord had parted with his proprietary interest in the zamindari before he had brought a suit for rent against the patnidar. In both cases the suit was brought for rent which had accrued due during the period that the plaintiff was the landlord. In Bahadur Singh V/s. Forbes [1908] 35 Cal. 737 before the High Court the view taken was that the charge created under Section 65, Ben. Ten. Act, in respect of arrears of rent attached to the holding in default irrespective of the fact whether the landlord was still the landlord or had parted with his interest. In holding that that view was not correct their Lordships of the Judicial Committee referred to the Full Bench case of Khetra Pal [1906] 33 Cal. 566 and remarked that the learned Judges of the High Court had fallen into an error in drawing an inference of law in support of their conclusion from a decision which was obviously based on facts different from those with which they had to deal. Their Lordships then referred to the facts of Khetra Pal's case [1906] 33 Cal. 566 and distinguished them from those in the case before them. They then went on to observe: The broad question however for determination in this appeal is whether the special right created in favour of the landlord under Section 65 can be claimed also by one who has parted with the property which gives this right and to which it is attached.